That was when
the New York Times' James Risen and Eric Lichtblau were finally
allowed to reveal what they had learned more than a year earlier:
namely, that President Bush, in 2002, had ordered the National
Security Agency to eavesdrop on the electronic communications of
US citizens without first obtaining warrants from the FISA court
as required by 30-year-old criminal law.

For the next
three years, they reported, the NSA "monitored the international
telephone calls and international e-mail messages of hundreds,
perhaps thousands, of people inside the United States without
warrants." The two NYT reporters won the Pulitzer Prize for that
story.

To say that progressives and liberals bellowed sustained outrage
over that revelation is to understate the case. That NSA program
was revealed less than two months after I first began writing
about political issues, and I spent the next full year
overwhelmingly focused on that story, and also wrote my first
book on it.

In progressive circles, the NSA warrantless eavesdropping program
was the pure symbol of Bush/Cheney radicalism and lawlessness:
they secretly decided that they were empowered to break the law,
to commit what US statutes classified as felonies, based on
extremist theories of executive power that held that the
President, as Commander-in-Chief, was entitled under Article II
of the Constitution to eavesdrop however he wanted in the name of
national security, even if it meant doing exactly that which the
law forbade.

The FISA law provided
that anyone who eavesdrops without the required warrants -
exactly what Bush officials did - is committing a felony
"punishable by a fine of not more than $10,000 or imprisonment
for not more than five years, or both" - for each offense.

So why, then, was there no accountability for this systematic
illegal spying? That happened for two reasons. First,
both the Bush DOJ and
then the Obama DOJ successfully convinced obsequious federal
courts that the eavesdropping program was
so secretive that national security would be harmed if courts
were to adjudicate its legality — in other words, top government
officials should be placed above and beyond the rule of law
because doing so is necessary to Keep Us Safe™.

Second, the Bush DOJ's most senior lawyers - Attorney
General John Ashcroft, Deputy Attorney General James Comey and
OLC chief Jack Goldsmith - approved a legal memorandum in 2004
endorsing radical executive power theories and warped statutory
interpretations, concluding that the Bush NSA warrantless
eavesdropping program was legal, thus making it more difficult to
prosecute the Bush officials who ordered it (even if the Obama
DOJ were inclined to prosecute, which they were not).

How are Obama's most devoted media loyalists reacting to the news
that he is about to put in charge of the FBI the Bush lawyer who
authorized the illegal NSA warrantless eavesdropping program
based on warped right-wing legal theories?

Exactly as you would expect. Here's one of
them - who wrote post after post after post in 2006 and 2007
vehemently denouncing the NSA program which Comey authorized and
the theories on which it was based - hailing Comey as "not only
non partisan in [his] job but consistently put constitutional
equities at center [of his] thinking".

It is true that Comey was at the center of a dramatic Bush-era
political controversy that earned him praise from many Bush
critics, including
me.

Comey was one of the Bush DOJ lawyers who, along with Ashcroft,
Goldsmith, and FBI Director Robert Mueller, had threatened to
resign if Bush did not modify the NSA program in order to make it
legal in Comey's eyes, and he then went to the
hospital where Ashcroft was quite ill to prevent then-White
House counsel Alberto Gonzales and then-White House chief of
staff Andy Card from bullying the infirm and barely cogent
Attorney General into signing off on the legality of the NSA
program.

In other words, there was something the NSA was doing for years -
that we still don't know - even more extreme than the
illegal NSA program revealed by the NYT in 2005.

It was Comey, along with Ashcroft, Mueller, and Goldsmith, who
threatened to resign if it did not stop, and they deserve credit
for that.

But the reason they didn't end up resigning was because Bush
officials "modified" that NSA program into something those
lawyers could and did endorse: the still-illegal, still-radical
NSA eavesdropping program that spied on the communications of
Americans without warrants and in violation of the law.

Thus, it was Comey who gave his legal approval to enable that NSA
eavesdropping program to spy on Americans without warrants: the
same program that produced so much outrage and scandal when
revealed by the NYT.

How can any progressive who spent the Bush years vehemently
denouncing that domestic spying program as the symbol of Bush
radicalism and lawlessness now cheer when the lawyer who approved
it is about to be put in charge of the FBI?

Then there's Comey's mixed and quite murky role in authorizing
Bush's torture program. Internal DOJ emails released to the
New York Times in 2009 show Comey expressing serious
reservations, and even objections, to the willingness of Albert
Gonzales to legally authorize any interrogation techniques the
White House wanted, and he warned those officials that their
involvement would be condemned by history.

"Previously
undisclosed Justice Department e-mail messages, interviews and
newly declassified documents show that some of the lawyers,
including James B. Comey, the deputy attorney general who argued
repeatedly that the United States would regret using harsh
methods,went along with a 2005
legal opinion asserting that the techniques used by the Central
Intelligence Agency were lawful.

"That opinion, giving the green light for the CIA to use all 13
methods in interrogating terrorism suspects, including
waterboarding and up to 180 hours of sleep deprivation, 'was
ready to go out and I concurred,' Mr. Comey wrote to a colleague
in an April 27, 2005, e-mail message obtained by The New
York Times."

As I wrote at the
time, the NYT article significantly overstated Comey's role
in approving these torture programs. But it is true that he
ultimately acquiesced to their legalization.

There's no question that James Comey was far from among the worst
people at the Bush DOJ. He's not John Yoo or David Addington.

He engaged in some commendably rare conduct, including objecting
to the more extreme version of the NSA program to the point of
threatening resignation, and voicing serious reservations about
the wisdom of some of the more extreme torture techniques.

I understand the respect people have for some of what he did, and
even share it.

But whatever else was true, he was the lawyer who legally
approved that warrantless NSA program that the New York Times
revealed that caused so much scandal. And he was part of the
process that legalized the torture techniques used by the Bush
administration.

How can that possibly not disqualify him from running the FBI in
the eyes of progressives who claimed to find all of that so
atrocious and such an assault on all that is dear and good in the
world?

But this is exactly where the Obama administration has taken us.
Comey will run the FBI alongside Obama's chief of the CIA, John
Brennan, who spent the Bush years
advocating multiple torture techniques and rendition.

The Agent of
Change reaches deep into the bowels of the Bush National Security
State and empowers them to run two of the most powerful
agencies.

Then again,
the Bush NSA program is hardly controversial in the Age of Obama:
it was Obama who first voted to immunize the telecoms from all
legal liability for their illegal participation in that program,
then the Obama DOJ succeeded in having all lawsuits over that
program dismissed on secrecy and immunity grounds, and then Obama
himself succeeded in first enacting and then
renewing the law that legalizedmost aspects of that Bush
NSA eavesdropping program.

What was once deemed radical is now normal. Bush officials who
formally authorized programs once depicted by progressives as
radical and criminal are now heralded by those same progressives
as Champions of the Constitution.

The politician elected on a pledge of Change and Restoration of
Our Values now routinely empowers exactly those Washington
officials who championed the policies against which he railed.

It's one thing to watch Obama shield and protect all Bush
officials who enabled this illegal warrantless domestic
surveillance scheme. It's quite another to watch him put in
charge of the FBI the very official whose signature deemed
it to be legal.

James Comey is far from the worst choice to lead the FBI. I doubt
it will change much of anything one way or the other, and there
are undoubtedly worse people within the senior ranks of the
Democratic Party who would be the likely alternatives.

But it's still a potent symbol of how little has changed in the
right direction and how much it has changed in the wrong
direction. If you had told progressives in 2008 that the Bush
lawyer who approved the NSA program would be named by Obama as
the FBI Director, they would scoff in disbelief. Now they'll
cheer. That is what has changed.

Unsurprisingly, both Politico and the Washington Post will
eagerly submit to that condition and attend the meeting, even
though they'll be barred from telling their readers what was
discussed. Here
is the unbelievable response of the official spokesman of the
Democratic National Committee, Brad Woodhouse, upon learning that
several leading media outlets will not attend under that
condition:

Unless media outlets submit to the Attorney General's demand that
they meet with him off-the-record, then they "forfeit their right
to gripe" over the DOJ's seizure of their emails and telephone
records and labeling them as criminals. Thus decree-eth the DNC.